Ghosh v Health Care Complaints Commission [2020] NSWCA 353

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ghosh v Health Care Complaints Commission [2020] NSWCA 353 Hearing dates: 04 December 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Before: Bell P; Payne JA; Stevenson J Decision: (1) Leave to appeal, insofar as it is required, is granted. (2) The appeal is allowed. (3) The decisions of New South Wales Civil and Administrative Tribunal of 25 March 2020, 15 April 2020 and 17 August 2020 are set aside. (4) The matter is to be remitted to the New South Wales Civil and Administrative Tribunal to be re-heard, by a differently constituted panel. (5) The respondent is to pay the appellant's costs of the appeal and of the hearing before the Tribunal. Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – power of Tribunal to order that a complaint be heard on the papers – where National Law required notice of time and place of inquiry to be given – where National Law entitled practitioner to attend the inquiry – where National Law applied despite any provision in Civil and Administrative Tribunal Act ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – where Tribunal did not afford practitioner procedural fairness – where Tribunal erred in relation to its consideration of certain complaints – where Tribunal failed to give adequate reasons for its conclusions concerning certain complaints Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 50, 62, sch 5 cl 29(4) Health Care Complaints Act 1993 (NSW) s 34A(4) Health Practitioner Regulation (New South Wales) Regulation 2010 sch 2 cl 1(2) Health Practitioner Regulation National Law 2009 (NSW) ss 139(a), 139B, 139E(5), 139G, 149C, 150(1), 163, 165I, 165J, 165K, 165M, 193E, pt 8, sch 7 cl 4 Poisons and Therapeutic Goods Regulation 2008 (NSW) cl 38 Supreme Court Act 1970 (NSW) s 48 Cases Cited: Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521; [2000] FCA 579 Ghosh v Medical Council of New South Wales [2018] NSWCATOD 186 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v Ghosh [2020] NSWCATOD 7 Inglis v Robertson [1898] AC 616 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 Liu v Health Care Complaints Commission [2018] NSWSC 315 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) Category: Principal judgment Parties: Ratna Ghosh (Appellant) Health Care Complaints Commission (First Respondent) Civil and Administrative Tribunal of New South Wales (Second Respondent) Representation: Counsel: C Jackson (Appellant) A Britt (First Respondent)